The decision of the Judge on request to dismiss Larry O’Brien’s case, will effect the behavior of elected officials.

Mayor Larry O'Brien returns to the Elgin St. courthouse on Monday

Ottawa: Justice Douglas Cunningham, the judge in O’Briens case, could set precedent on the way politics will be conducted in this country.

Charge with infiluence peddling, O’Brien allegedly offered a National Parole Board Position,to former Mayoral candidate Terry Kilrer, in exchange for dropping out of the campaige in 2006.

 But David Paciocco, a University of Ottawa Law Professor, a defence team member of O’Briens, last Tuesday, asked Judge Cunningham to dismiss the case, because the sections of the Criminal Code, that Mayor O’Brien is charge under, were never meant to apply to these kinds of Political Negotiations.

The nature of political wrangling could be effected, no matter which way the Judge decides, if the application is denied  by Cunningham, it may mean that, as Paciocco put it to the court  last week, the Judge, “will effectively be declaring the conduct of honourable members, and indeed, Prime Ministers of the country as criminal”.

But it could turn into a free for all for politicians,offerin appointments to gain political advantages,if the Judge accepts to grant a directed verdict.

Peter Rosenthal a Universty of Toronto Math Professor, and practising lawyer says, “as the motion outlines it points to a law, whose interpretation is not so clear”.

It’s a law that,if interpreted in ciertain ways, could have wide application, and could really effect a lot of politicians”.

Read the full story. By Joanne Chianello, The Ottawa Citizen.

 When Justice Douglas Cunningham decides whether to throw out the case against mayor Larry O’Brien, he could set precedent on the way politics will be conducted in this country.

O’Brien is charged with influence peddling, allegedly offering a National Parole Board position to former mayoral candidate Terry Kilrea in exchange for dropping out of the campaign in 2006.

But University of Ottawa law professor David Paciocco — a member of O’Brien’s defence team — said the sections of the Criminal Code that the mayor is charged under were never meant to apply to these kinds of political negotiations. Last Tuesday, he asked Cunningham to dismiss the case.

Whichever way the judge decides, the nature of political wrangling could be affected. If Cunningham denies the application, it may mean that, as Paciocco put it to the court last week, the judge “will effectively be declaring the conduct of many honourable members and indeed prime ministers of this country as criminal.”

But if he accepts to grant a directed verdict, it could turn into a free-for-all for politicians offering appointments to gain political advantages.

“As the motion outlines, it points to a law whose interpretation is not so clear,” says Peter Rosenthal, a University of Toronto math professor and practising lawyer.

“It’s a law that, if interpreted in certain ways, could have wide application and could really affect a lot of politicians.”

Few observers could have predicted that what started as a court case of intense, but mainly local, interest would end up setting legal precedent. But there’s relatively little case law associated with the two sections of code, which means that there’s plenty of room for interpretation.

The crown prosecutor is alleging that O’Brien violated section 121 (1) (d) by claiming he would use his influence (or supposed influence) to get Kilrea appointed to the parole board in exchange for a political “benefit” — Kilrea dropping out of the race.

The problem with that law, according to Paciocco, is that that’s how politics is conducted all the time.

“I think a lot of people would be surprised to discover that what’s being alleged constitutes a crime,” says James Stribopoulos, an associate lawyer with Osgoode Hall Law School. “I’m not saying it’s a fact, but the perception is that there’s a lot of quid pro quo going on among politicians.”

And Paciocco intends to prove it. When court resumes on Monday, O’Brien’s team is expected to call David Mitchell, the head of the Public Policy Forum and former British Columbia MLA, to testify as to the nature of Canadian political culture.

Paciocco also intends to show that the Supreme Court has made it “crystal clear” that any “benefits” alluded to in the law must be financial. (He’s expected to elaborate on the case law on Monday.)

So, under that interpretation, it would be illegal to accept $10,000 in exchange for an appointment to a board. But what about accepting a resignation from an electoral race in exchange for a job?

“It’s greyer, isn’t it?” says Stribopoulos. “A lot of people would be offended by the ethics of it, that’s for sure, but whether it’s criminal or not really comes back to how we expect politics to be conducted in this country.”

As Liberal communications strategist Scott Reid says, “there’s a difference between what people think goes on in politics, and what goes on.”

Political insiders are conscious of how it looks when, for example, MPs cross the floor directly into a cabinet position, or leadership contestants drop out of races only to land a plum position in a new government.

The rule of thumb, for all political parties, is “make no explicit promises,” says Reid, who was the communications director for former Liberal prime minister Paul Martin. He says it’s not that political parties are necessarily considering legal implications, but “there’s a professional standard that needs to be respected.”

When Belinda Stronach crossed the floor from the Conservative side of the House of Commons to the Liberal benches in May 2005, she was immediately made a cabinet minister. But Reid says no one enticed her to come over — she had to make the decision to defect on her own.

But it may be that public perception is on O’Brien’s side.

O’Brien is also charged under section 125 (b) of the code, which makes it a crime to solicit a resignation from an office in expectation of an advantage or benefit.

In March 2007, the Liberals accused the former Canadian Alliance leader Stockwell Day of paying MP Jim Hart $50,000 to give up his seat for Day. Hart did not deny the allegations. The RCMP had looked into the matter in 2001 and gave a preliminary report to Crown attorneys, who decided no criminal offence was committed by either Hart or the Alliance. The RCMP saw no reason to re-open the case six years later, despite what Liberals said were newly discovered documents regarding negotiations for money exchanged.

In 1975, when former B.C. premier Dave Barrett lost his seat, MLA

Bob Williams resigned so Barrett could run in a byelection. When the NDP hired Williams on an $80,000 research contract, police said it amounted to a seat sale and in 1998, tried to have them both charged under section 125. But a prosecutor concluded there was nothing criminal about the arrangement.

But the fact that few cases have been tried under these sections — or that other politicians have potentially slipped through the cracks of the laws — is not a defence.

“At most what you can argue is that this is selective enforcement,” says Lorne Sossin, a law professor at the University of Toronto, with an expertise in ethics and professionalism.

“I don’t think it’s a defence to say, ‘This happens all the time’.” Instead, Sossin draws a different line: it’s OK to trade partisan jobs, but it’s out-of-bounds to promise positions on what are supposed to be objective bodies.

“It clearly would be, in my view, improper to use partisan favours to be appointing someone to an independent arm’s-length body with the kind of serious responsibilities that a parole board has,” he says.

“The idea that you are trading an appointment to an adjudicative body and saying the main criteria is going to be favouritism, would strike most members of the public as a pretty offensive idea.”

This is all up to interpretation, which is why legal experts — and politicians — are interested in what Cunningham has to say.

“Because it’ll draw some lines here that are not at all (currently) clear, it’ll guide future political behaviours one way or the other,” says Rosenthal.

“Undoubtedly, it’ll go higher up, possibly to the Supreme Court.”

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